Land and Environment Court New South Wales Medium Neutral Citation: AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWLEC 76 Hearing dates: 6 July 2021 Date of orders: 16 July 2021 Decision date: 16 July 2021 Jurisdiction: Class 1 Before: Duggan J Decision: See paragraph 64 Catchwords: PRACTICE AND PROCEDURE – Application for leave to be heard at conciliation conference or hearing under s 38(3) Land and Environment Court Act or as amicus curiae – Court's power to permit non-party to participate in s 34 Conciliation Conference – Leave granted on terms to non-party to participate pursuant to s 38(2) – Unnecessary to determine amicus curiae Legislation Cited: Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Uniform Civil Procedure Rules 2005 Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2020] NSWLEC 159 Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 Duke Development v Sutherland Shire Council [2021] NSWLEC 69 M H Earthmoving Pty Ltd v Cootamundra-Gundagai Regional Council [2018] NSWLEC 56 Category: Procedural rulings Parties: AQC Dartbrook Management Pty Ltd (Applicant, First Respondent on the Notice of Motion) Minister for Planning and Public Spaces (First Respondent, Second Respondent on the Notice of Motion) (Submitting Appearance) Hunter Thoroughbred Breeders Association (Second Respondent, Applicant on the Notice of Motion) Representation: Counsel: N Wootton (Applicant, First Respondent on the Notice of Motion) A Stafford (Second Respondent, Applicant on the Notice of Motion) Solicitors: Sparke Helmore Lawyers (Applicant, First Respondent on the Notice of Motion) Beatty, Hughes & Associates (Second Respondent, Applicant on the Notice of Motion) File Number(s): 2019/346483 Publication restriction: No Judgment 1. By Notice of Motion filed on 10 June 2021 the Hunter Thoroughbred Breeders Association (HTBA) seeks leave to be heard at any conciliation conference or hearing of this matter either pursuant to s 38(3) of the Land and Environment Court Act 1979 (LEC Act) or as amicus curiae. If such leave is granted HTBA seeks orders that it be granted: 1. The opportunity to submit written argument in the matter; 2. The opportunity to submit oral argument and cross examine witnesses at the hearing of the matter; and 3. The opportunity to adduce evidence. 1. AQC Dartbrook Management Pty Ltd (AQC) is the Applicant in the proceedings and it opposes the granting of leave and the making of such orders. 2. The Minister for Planning and Public Spaces (the Minister) takes a neutral position in the Notice of Motion. The Minister proposed to make no submissions in the hearing of the Notice of Motion, however, to address a submission relating to the Minister's power to delegate, written submissions were filed. That submission was withdrawn by HTBA and the Minister was excused from attending the hearing of the Notice of Motion. Background facts 1. The proceedings relate to a request to modify an approval granted to AQC (MOD 7). The Minister and AQC have indicated that they have agreed the terms of an approval of MOD 7 and propose to request the Court to dispose of the proceedings in accordance with that agreement pursuant to s 34(3) of the LEC Act. The proceedings have been allocated to the Senior Commissioner for determination. 2. HTBA has previously sought leave to be heard as a party to these proceedings. Such application was heard by me and I determined that HTBA should be joined as a party. The reasons for my decision were contained in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2020] NSWLEC 159 (AQC (No 1)). 3. AQC appealed my decision in AQC (No 1) to the Court of Appeal and upon determination of the appeal that Court made orders setting aside my orders: … and in lieu thereof dismissed paragraph 3 of the notice of motion filed 9 November 2020, without prejudice to HTBA's entitlement to seek to be heard as to the making of order pursuant to s 34(3) of the Land and Environment Court Act 1979, with any amended notice of motion seeking to be heard to be filed and served within 7 days of [3 June 2021]. 1. The background facts leading up to the date of the hearing in the Court of Appeal are set out in the judgment of Preston CJ of the Land and Environment Court in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 (Dartbrook) at [57]-[121] and I adopt that recitation of the facts without repeating them here. 2. Since the hearing of the appeal in Dartbrook, AQC and the Minister have agreed to the terms of a s 34 Agreement in different terms to that which was the agreement under consideration in the motion before me and before the Court of Appeal, in so far as AQC no longer seeks the leave of the Court to modify the MOD 7 request but does seek (as it had originally proposed) to have conditions imposed upon the approval of the MOD 7 request to effect changes of a similar nature. 3. The parties have undertaken to HTBA to not request the Court to dispose of the proceedings in accordance with the current s 34 Agreement until determination of HTBA's Notice of Motion. Nature of leave sought 1. HTBA seeks to be amicus curiae, or in the alternative, to obtain a Double Bay Marina Order. 2. A Double Bay Marina Order is one made pursuant to s 38(2) and/or (3) of the LEC Act which relevantly provides: 38 Procedure … (2) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits. (3) Subject to the rules, and without limiting the generality of subsection (2), the Court may, in relation to proceedings in Class 1, 2 or 3 of the Court's jurisdiction, obtain the assistance of any person having professional or other qualifications relevant to any issue arising for determination in the proceedings and may receive in evidence the certificate of any such person…. 1. In Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 at 314-5 Cripps CJ determined, on an application to be heard from a group of objectors to an application to modify a development consent: In class 1 proceedings, the court may inform itself on any matter and in such manner as it thinks appropriate and it may obtain the assistance of persons having professional or other qualifications relevant to any issue arising for determination. The issue arising for determination is whether a consent granted by the court ought be modified and if so, in what manner. In my opinion, it is appropriate, in the special circumstances of this case, that to the extent that the views of the objectors conflict with the submissions of the council, those views be independently put to the court. 1. As was observed by Preston CJ of the LEC in Dartbrook at [196]-[198]: 196. There are two potential other modes of presence of a person in an administrative or merits review appeal in the Court. The first is by being allowed to appear to inform the Court on any matter and in such manner as the Court thinks appropriate. Under s 38(2) of the Court's jurisdiction, the Court "may inform itself on any matter in such manner as it think (sic) appropriate and as the proper consideration of the matters before the Court permits." This power has been used by the Court to grant leave to persons to appear at a hearing of proceedings in Class 1 of the Court's jurisdiction to inform the Court on matters in dispute in the proceedings, including by calling evidence, cross-examining other parties' witnesses and making submissions. This has been referred to as a Double Bay Marina order, after the case in which such an order was first made, Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 at 314-315. 197. The second mode of presence is by the Court appointing a person as an amicus curiae. The justification for allowing a person to appear as an amicus curiae is the willingness of the person to assist the Court in its determination of the matters in dispute. As Brennan J in Levy v State of Victoria (1997) 189 CLR 579 at 604; [1997] HCA 31 explained: "The footing on which an amicus curiae is heard is that that person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted. In Kruger v The Commonwealth, speaking for the Court, I said in refusing counsel's application to appear for a person as amicus curiae: 'As to his application to be heard as amicus curiae, he fails to show that the parties whose cause he would support are unable or unwilling adequately to protect their own interests or to assist the Court in arriving at the correct determination of the case. The Court must be cautious in considering applications to be heard by persons who would be amicus curiae lest the efficient operation of the Court be prejudiced. Where the Court has parties before it who are willing and able to provide adequate assistance to the Court it is inappropriate to grant the application.'" 198. The question that arises is whether the Court has power to allow a person to appear by either of these modes in a conciliation conference arranged under s 34(1) of the Court Act. On the face of the powers, there would appear to be no reason why the Court could not allow a person to appear either to inform the Court on a particular matter in dispute that it needs to determine at the conciliation conference or as an amicus curiae to assist the Court in its determination of such matter. The Court's making of either order provides the authority for the person to be present at the conciliation conference, notwithstanding that the person is not a party. 1. The parties agreed that the substance of the participation sought by HTBA would be the same either as a Double Bay Marina Order or as amicus, as the participation was directed to assisting the Court under either guise. However, there were differing considerations to be undertaken in determining whether HTBA should be allowed to participate in either capacity. Double Bay Marina Order 1. AQC submitted that there was no power to make a Double Bay Marina Order in this case as it was in the process of a s 34 Conciliation Conference and, consistent with the decision of Molesworth AJ in M H Earthmoving Pty Ltd v Cootamundra-Gundagai Regional Council [2018] NSWLEC 56 (M H Earthmoving), there is no power to permit such participation in s 34 Conciliation Conferences. 2. HTBA submitted that if the decision in M H Earthmoving was authority for the proposition relied upon by AQC it was clearly wrong and should not be followed. 3. I accept the submissions of HTBA that, in circumstances such as the present, the Court does have power to permit the participation of a non-party in a s 34 Conciliation Conference. 4. In M H Earthmoving the non-party was seeking to participate in what Molesworth AJ described as the "second phase" of the conciliation conference where the parties and their representatives (assisted by the Commissioner) have without prejudice discussions in an attempt to reach agreement. He distinguished the usual participation of the non-parties as not being part of the s 34 Conciliation Conference – but preceding it, being what he described as the "first phase". 5. In this case, the conciliation conference has reached the stage that the parties have agreed on the terms of an agreement and have requested the Senior Commissioner dispose of the proceedings in accordance with s 34(3). Therefore, both the first and second phases as described in M H Earthmoving are complete and what remains is for the Senior Commissioner to determine whether the decision, the subject of the parties' agreement, is one that the Court could have made in the proper exercise of its functions. If so, the Senior Commissioner must dispose of the proceedings in accordance with that decision: s 34(3)(a) of the LEC Act. The degree of participation in the s 34 Conciliation Conference that HTBA now seeks is limited only to the Senior Commissioner's consideration of that issue. The intent, if there be any, to permit the second phase of a conciliation conference to be strictly confidential is not undermined by the participation now sought by HTBA. As a consequence, even if I considered M H Earthmoving to be authority for the prohibition as formulated by AQC the circumstances of this case are distinguishable. 6. If I be wrong in distinguishing the circumstances of this case from that in M H Earthmoving, I would consider the decision to be clearly wrong in that respect and not follow it. 7. In M H Earthmoving Molesworth AJ found at [78] that he had no power to permit a non-party to participate in the s 34 Conciliation Conference which he found commenced at the "closed door" (second phase). His Honour's finding as to lack of power turned upon his reasoning at [64] and [70] in the following terms: 64. I have concluded from my statutory analysis of s 34 of the LEC Act, in the context of its legislative history and the multiplicity of case law before me, that a non-party cannot participate in what I have described earlier as the "second stage" of the conciliation conference. The legislation is clear in my view, only parties can be "in the room" at such a conference. Therefore, in circumstances where GCEIG has made it clear that it is not seeking to be joined as a party to the proceedings, then whatever orders I now make it is to remain a non-party. Therefore, without offending the legislative scheme of s 34, I cannot allow GCEIG to be participants "within the room" of the scheduled conciliation conference in this matter. 70. So focussing on this so-called stage one, which precedes the formal stage two s 34 conciliation conference process, it is frequently the case that this two-part process is referred to as the conciliation conference process. In fact only one part of the process, the second part, is the strict conciliation conference. The critical distinction is that in the first part of process both parties and non-parties participate, whereas in the second part, only parties can participate. In that context, the Double Bay Marina order is, in my view, available for the first part, but not for the second part, of this process. Given the entitlement of a non-party to participate in the process established by the Court, enabling submitters such as objectors to be heard in the stage one exercise, it might be asked whether there remains any utility in the making of a Double Bay Marina order in relation to stage one. 1. Whilst [64] refers to an analysis by his Honour of s 34, it is not readily apparent from the reasons to what analysis his Honour was referring. At [11]-[20] the relevant legislative provisions are reproduced, however, his Honour does not identify an analysis of s 34 of the LEC Act which would support the finding in [64]. In that part of the decision, in forming the concept of the two phased conciliation conference, what is referred to is the operation of the Court's Practice Note for Development Appeals that provides at [46] that a conciliation conference will be conducted in accordance with the Court's Conciliation Conference Policy. Thereafter, his Honour recited at [19] that part of the Court's Conciliation Conference Policy sets out the advice to be given by Council to people who make submissions. From this his Honour observes at [20]: 20. As is evident from item 12 of the Policy, following the site inspection and on-site oral submissions, the parties undertake confidential conciliation discussions facilitated by the Commissioner. Crucially, in this instance, "[p]articipation in those discussions is limited to the parties (including their legal representatives and experts)". This is the second stage of the process. 1. The part of item 12 which is referred to in [20] states in full: People who made submissions to the council are also advised that, at the conclusion of any submissions made on site, the parties will be undertaking confidential conciliation discussions facilitated by the Commissioner and that participation in those discussions is limited to the parties (including their legal representatives and experts). 1. It appears from my understanding of the reasons in M H Earthmoving that the concept of the two phased s 34 Conciliation Conference and the legal barrier to participation by non-parties was founded upon the operation of the one reference in item 12 of the Court's Conciliation Conference Policy, rather than from the terms of s 34 of the LEC Act. 2. Dealing firstly with the provisions of s 34 of the LEC Act, being the source of power for the undertaking of a s 34 Conciliation Conference it relevantly provides: 34 Conciliation Conferences (1) If proceedings are pending in Class 1, 2 or 3 of the Court's jurisdiction, the Court— (a) may arrange a conciliation conference between the parties or their representatives, with or without their consent, and (b) if it does so, must notify the parties or their representatives of the time and place fixed for the conference. (1A) It is the duty of each party to proceedings where a conciliation conference has been arranged under subsection (1) to participate, in good faith, in the conciliation conference. (2) A conciliation conference is to be presided over by a single Commissioner. (3) If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner— (a) must dispose of the proceedings in accordance with the decision, and (b) must set out in writing the terms of the decision. … (10A) The same privilege with respect to defamation as exists with respect to judicial proceedings and a document produced in judicial proceedings exists with respect to— (a) a conciliation conference, and (b) a document or other material sent to or produced to a Commissioner, or sent to or produced at the Court or the registry of the Court, for the purpose of enabling a conciliation conference to be arranged. (10B) The privilege conferred by subsection (10A) extends only to a publication made— (a) at a conciliation conference, or (b) in a document or other material sent to or produced to a Commissioner, or sent to or produced at the Court or the registry of the Court, for the purpose of enabling a conciliation conference to be arranged. (11) Subject to subsections (10) and (12)— (a) evidence of anything said or of any admission made in a conciliation conference is not admissible in any proceedings before any court, tribunal or body, and (b) a document prepared for the purposes of, or in the course of, or as a result of, a conciliation conference, or any copy of such a document, is not admissible in evidence in any proceedings before any court, tribunal or body. (12) Subsection (11) does not apply with respect to any evidence or document if the parties consent to the admission of the evidence or document. 1. The reference in s 34 to the conciliation conference being between the parties and their representatives is no more than an acknowledgment that the Court makes directions in respect of proceedings before it, and in such a case those proceedings are comprised of parties. There is no dictate in this section as to the manner in which the s 34 Conciliation Conference is to be conducted, other than the direction to the parties that they participate in good faith and that a single commissioner preside over such conference. There is no legislative limit on participation or the manner in which persons other than parties or their representatives may participate. 2. Thereafter, the provisions relating to privilege relates to the totality of the conference and is not limited only to parties. The privilege, however, may be waived only by the parties. Such a provision does not, on its face: limit participation to only parties in the proceedings to the conference; or limit it only to material provided by the parties; or material produced for the "second phase" of the conference. 3. The provisions of the Court's Conciliation Conference Policy cannot limit the powers conferred by s 34, but rather operate as an indication of how such conciliation conferences, in the usual course, will be conducted. The Policy is a supplement, providing guidance, not a legislative limit. The presiding Commissioner has all of the powers of the Court in conducting the s 34 Conciliation Conference together with powers and obligations under the Civil Procedure Act 2005 to manage the conference in a manner that is consistent with those requirements. This may mean that a presiding Commissioner directs that it would be in the interests of the conference for only the parties to be present for either all or part of the conference, in other circumstances, the nature of the case and the issues may dictate a different approach. The reference in the Court's Conciliation Conference Policy to the advice to be given to submitters that a confidential session that follows would preclude further participation by them does not operate to absolutely prevent non-party participation in all circumstances. 4. It is also worthy of note that the Court's Conciliation Conference Policy expressly permits the participation of persons who are not parties (or the representatives of parties) by making provision for expert witness participation. An expert witness does not fall into either of the express inclusions in s 34 of the LEC Act, and therefore, must be regarded as a non-party for the purposes of s 34 of the LEC Act, the Practice Note and the Court's Conciliation Conference Policy. 5. In the exercise of the Court's power the presiding Commissioner is also subject to the provisions of s 38 of the LEC Act. Those provisions are not excluded either by express terms or implication in the exercise of the s 34 power. In this case, the relevant provision under consideration for a Double Bay Marina Order is s 38 (and in particular s 38(2)) which provides: 38 Procedure (1) Proceedings in Class 1, 2 or 3 of the Court's jurisdiction shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit. (2) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits. (3) Subject to the rules, and without limiting the generality of subsection (2), the Court may, in relation to proceedings in Class 1, 2 or 3 of the Court's jurisdiction, obtain the assistance of any person having professional or other qualifications relevant to any issue arising for determination in the proceedings and may receive in evidence the certificate of any such person. (4) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court may, in respect of a matter not dealt with by this Act or the rules, give directions as to the procedure to be followed at or in connection with the hearing. (5) In this section, a reference to the Court includes a reference to the Commissioner or Commissioners directed under section 36 to hear and dispose of proceedings. 1. To consider s 34 as being a separate and distinct power such that the Commissioner is precluded from utilising the procedure provided for in s 38 is contrary to the legislative language. As is made plain in s 38(1), (2) and (3) it relates to the conduct of "proceedings" and is not limited to a "hearing" (perhaps, to be contrasted with the language in s 38(4) – the consequence of which need not be considered here). 2. It is worth noting, however, notwithstanding the manner in which a conciliation conference is conducted the legislative provisions make it clear that it is only the parties that are able to determine whether an agreement will be made. That is, even if a non-party were permitted to be present at all times in the s 34 Conciliation Conference, that non-party has no power to veto, frustrate or prevent the entry into an agreement by the parties to the proceedings. If an agreement is reached the Commissioner must dispose of the matter in accordance with s 34(3) of the LEC Act, which may involve considering the submissions of a non-party as to power, but would not permit a Commissioner to decline to exercise the power required by s 34(3) merely because the Commissioner agreed with the non-party on matters going only to merit. 3. For those reasons, the legislative provisions that govern the conduct of a s 34 Conciliation Conference do not, as a matter of power, preclude the making of a Double Bay Marina Order that would permit a non-party to participate in a s 34 conference: on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits. 4. Whilst there is a power to permit such participation (not a third party right to require it) it will be a matter that will depend on the circumstances of each case whether such a power should be exercised in the Court's discretion. 5. For those reasons, I decline to follow the decision of Molesworth AJ in M H Earthmoving and find that there is power to make a Double Bay Marina Order at a s 34 Conciliation Conference. The question is thereafter, whether in the exercise of the Court's discretion, such an order should be made in the circumstances of this case. 6. As observed above, the application made by HTBA is to make submissions going to the power of the Court to dispose of the proceedings in the manner proposed by the parties. To this issue HTBA raises an issue of the power of the Court to impose conditions upon the approval, the subject of the s 34 Agreement. In issue, on HTBA's submissions is whether: 1. There is an absence of power under s 75W to grant an approval to the modification request imposing conditions 1.1(a)(xi), 1.1(a2), 2.3(c) and 2.4 because: 1. There is no power to significantly alter a modification request by way of condition; 2. Conditions under s 75W must fairly and reasonably relate to the modification sought in the MOD 7 request; 3. The power to condition does not include the power to prohibit that which was requested in the MOD 7 request; and 4. The statutory requirement to make a request also suggests that the condition power was not intended to significantly alter that request. 1. Whether there is power to require the proponent to enter into a Voluntary Planning Agreement; and 2. The absence of power for an appeal to be brought under to 75W(5) of the Environmental Planning and Assessment Act 1979 (EP&A Act) where the project has been the subject of a review by the Planning Assessment Commission and so is not a project to which the provisions of s 75K applies. 1. With respect to the power to impose the nominated conditions HTBA raised three particular aspects of the proposed modification of the project to which these issues relate, namely: 1. The cessation of mining of the Piercefield seam; 2. The rejects emplacement area; and 3. The coal handling above ground infrastructure. The Piercefield seam and the coal handling above ground infrastructure 1. This issue relates to the power to impose a condition on a modification request that, in effect, by condition precludes the mining of coal from a coal seam which was otherwise permitted in the original approval and not sought as part of the modification request upon which the condition is intended to be imposed. This issue is said to require a consideration of each of the identified reasons in [36(1)] above. 2. A consideration relating to the power to lawfully impose conditions is one that the Senior Commissioner would have to be satisfied of in exercising her power to dispose of the proceedings under s 34(3): Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 at [76]. 3. Neither party was able to direct me to any authority that resolves the issues as raised by HTBA directly. Further, whilst the issue of power had been raised by HTBA and considered during the course of consideration of the MOD 7 request, the issue in the context of s 34(3) and the context of the decision in the Court of Appeal in Dartbrook and the recent decision of Robson J of this Court in Duke Development v Sutherland Shire Council [2021] NSWLEC 69 had not been raised in the material at Annexure B of the proposed agreement which was intended to be provided to the Senior Commissioner. 4. I accept that there is no reason to believe that AQC or the Minister will not discharge their duties to assist the Senior Commissioner consistent with their obligations to the Court. Further, it is open to the Senior Commissioner to seek further assistance from the parties, if she so requires, in the making of the determination now required by s 34(3) of the LEC Act. However, in the circumstances of this case, having regard to the volume of material that the Senior Commissioner would have to have regard to in order to ascertain the particular submission being made by HTBA (relating to the issue of power) and in the circumstances of this case (where there is no clear authority), I consider that the Senior Commissioner may be assisted by a clear and concise statement of the submissions made by HTBA's legal representatives that clearly take a divergent view of the power to impose such conditions. Such would enable, at the very least, a clarity of the matters to which HTBA contend are relevant to the Senior Commissioner's determination. To that end, such participation is akin to the making of submissions to the consent authority, or the Court on appeal. 5. It was suggested by AQC that the issue of the lawfulness of the conditions proposed had been determined already by me in AQC (No 1) at [51] and in Dartbrook by Leeming and Meagher JJA at [27] and Preston CJ of the LEC at [277]; and further in the recent decision of Robson J in Duke at [71]-[77]. However, I do not consider such statements to be findings of the lawfulness of the particular condition in the context of a particular request made under s 75W, rather they are observations of an available power to make otherwise lawful conditions. Therefore, in the circumstances of this case the issue as to whether the conditions that change the scope of the MOD 7 request has not been determined. 6. It was also submitted by AQC that the participation by HTBA would involve an unreasonable cost and delay. I accept that the participation in the manner proposed by HTBA relating to the s 34 component of the proceedings may produce some further work and some further delay. However, I do not consider that such participation would have the consequence of an unreasonable impost. The extent of any participation by HTBA is able to be managed by making directions in this Notice of Motion and by the Senior Commissioner, if required, to avoid unreasonably delaying or adding to the cost of the proceedings. 7. Accordingly, for the purpose of informing the Senior Commissioner in a concise and practical manner, leave should be granted, on terms, for HTBA to provide the Senior Commissioner with written submissions relating to the issues. Reject emplacement 1. HTBA contends that the proposed conditions transform what had been identified as a rehabilitation area as a reject emplacement area. 2. AQC contends that HTBA have misunderstood the terms of the MOD 7 and the conditions. 3. Having considered the MOD 7 request where it states at [4.3.7] that there is no proposal to wash coal extracted by bord and pillar mining and that MOD 7 does not generate any coarse rejects or tailings, which factor was confirmed by the Summary of Modification at Table 3 of the MOD 7 environmental assessment. The plan to which HTBA refers is a plan that identified the existing situation (which was approved) and that there is no condition that requires the area identified to be "retained" as a rehabilitation area as opposed to a reject emplacement area. 4. Accordingly, I accept the submissions of AQC and on that basis there is no substantive assistance that HTBA can give the Senior Commissioner relating to this issue as it is not one that arises as a consequence of MOD 7 either in the request or in the conditions of the proposed agreement placed before the Senior Commissioner. No appeal right 1. I was not directed to any of the submissions made by HTBA in the consideration by the IPC that had raised this submission in the past. This issue was also not raised before me as an issue HTBA was seeking to raise in AQC (No 1) when joinder was sought. In the appeal from AQC (No1) to the Court of Appeal the issue was raised and was the subject of consideration by Preston CJ of the LEC in Dartbrook. Whilst these observations at [100] are obiter, HTBA had raised the issue and provided written submissions upon it. Whilst HTBA indicated that it was not necessary for the Court of Appeal to determine the issue, and the other two judges of the Court of Appeal declined to do so, the issue was addressed by Preston CJ of the LEC. Having regard to the state of the proceedings presently before the Court, in that the parties have agreed to a resolution of the proceedings and the matter is now before the Senior Commissioner to determine whether the determination is one which could have been made in the proper exercise of the Court's functions, it is inappropriate to permit that issue, already raised in Dartbrook, to be argued again before the Senior Commissioner at this stage of the proceedings. 2. This issue, having regard to the Dartbrook decision and the material before her is a matter that the Senior Commissioner (unless she determines otherwise) is able to consider without further assistance. VPA – Condition 11.4 and Appendix 5 of the Agreement 1. This issue relates to a construction of the legislative arrangements in place relating to projects of this type. The issue as raised by HTBA in essence turns upon whether s 75R continues in operation as at the relevant date for s 75W modifications. 2. The parties both took me to a detailed examination of the transitional provisions relating to applications such as the MOD 7 request. 3. Having regard to the totality of those provisions I accept the submissions of AQC. Whilst cl 12 of Schedule 2 does not, in express terms, preserve the operation of the whole of Part 3A as it applies to modification under s 75W, it must, by implication, do so. Section 75W when in force operated as part of the whole of Part 3A. The power to approve a project and to impose conditions upon such a project were expressed, as were the application of other parts of the planning legislation and planning instruments. The preservation of s 75W must have also preserved those parts of Part 3A that operated in connection with that power. If the provisions of s 75R were not preserved in the s 75W request context (as was submitted by HTBA) the express continued power to modify under s 75W would operate in a very different manner post repeal of Part 3A than before. By way of illustration, absent the continued operation of s 75R on a s 75W application the operation of planning instruments and the limitation on the power to impose conditions for contributions would be uncertain or operate differently to when Part 3A was in force. 4. It is apparent from the text and context of the transitional provisions relating to the continued operation of s 75W was to preserve this means to modify an approval, in effect as if, to that extent, Part 3A had not been repealed. It would be inconsistent with that intention to only preserve the operation of s 75W and not those parts of Part 3A that operated on the exercise of that power. To do otherwise would undermine the statutory intent and transform the modification power to something other than that which was intended to be preserved. 5. For those reasons, I do not consider that the Senior Commissioner would be assisted by having further submissions made to her by HTBA in order for her to perform the functions required by s 34(3). Amicus curiae 1. Having determined that the Court does have power to permit a non-party to participate in a s 34 Conciliation Conference and having determined that it is appropriate in the exercise of the Court's discretion that HTBA be permitted to participate in the present s 34 Conciliation Conference before the Senior Commissioner it is unnecessary for me to determine whether in the circumstances of this case I would also permit the same participation as amicus curiae. Leave to participate in any hearing 1. At the present time it is premature to consider the request made by HTBA to make submissions at any hearing. If the Senior Commissioner is not satisfied that the Agreement with which she is seized is a decision that the Court could make in the proper exercise of its functions then it is for her to determine the future course of the proceedings from a case management perspective and to that extent also, having regard to the issues that may remain, to determine whether and from whom she may require further assistance as provided for in s 38(3) of the LEC Act. For that reason and at this stage of the proceedings, I consider it premature to consider whether HTBA should participate in any particular manner in any speculated hearing on issues yet to be determined. Case management directions 1. The matter will now be returned to the Senior Commissioner. Apart from the making of the orders and directions relating to the Notice of Motion before me, the matter will now rest with the Senior Commissioner. It is not intended that these reasons, or the orders and directions made, would preclude the Senior Commissioner from exercising any discretion she may have as to the case management or future conduct of the proceedings. All such discretions remain with the Senior Commissioner. 2. The only participation that will be facilitated by this Notice of Motion is the filing of written submissions on a limited basis. It is not intended that the determination of the Notice of Motion would preclude the Senior Commissioner from exercising any of her discretion relating to the conduct of the proceedings or dictate the manner in which she would exercise such discretion if the circumstance arose. 3. To the extent that HTBA submitted that it would be unusual and a denial of a reasonable expectation, if it were permitted to make a submission but not respond to any submissions made by the parties, I reject this submission. The participation that I grant leave for is limited. HTBA are not entitled to the benefit of procedures afforded to a party. The purpose of the leave I grant is to permit HTBA to formulate in a single submission the matters relating to the imposition of conditions identified above. That is the full extent of the leave granted and it should be clear that it carries no incidental entitlement to be heard in reply, or even to receive or hear any submissions made by the parties to the Senior Commissioner. HTBA is not a party and cannot expect to be heard as one. Conclusion 1. For the reasons outlined herein, leave is to be granted to HTBA pursuant to s 38(2) to provide assistance to the Senior Commissioner by written submissions on a limited basis which will be set out in the orders. 2. I make no orders or directions relating to the parties, except to the extent that the request to exercise the powers under s 34(3) should not be made to the Senior Commissioner until such time as the period for the participation by HTBA has expired. 3. The manner in which the parties chose to deal with any submissions filed and served by HTBA will be a matter entirely for them. How the matter proceeds further will be at the discretion of the Senior Commissioner and the parties. Order and Directions 1. Leave is granted pursuant to s 38(2) of the Land and Environment Court Act 1979 to the Hunter Thoroughbred Breeders Association to participate in the proceedings before the Senior Commissioner to the following extent and in the following manner: 1. To make submissions in writing as to whether there is an absence of power under s 75W to grant an approval to the modification request imposing conditions 1.1(a)(xi), 1.1(a2), 2.3(c) and 2.4 because: 1. There is no power to significantly alter the MOD 7 request by way of condition; 2. Conditions under s 75W must fairly and reasonably relate to the modification sought in the MOD 7 request; 3. The power to condition does not include the power to prohibit that which was requested in the MOD 7 request; and 4. The statutory requirement to make a request also suggests that the condition power was not intended to significantly alter the MOD 7 request. 1. The leave granted in (1) is only in respect of the conditions as they relate to: 1. The cessation of mining of the Piercefield seam; and 2. The coal handling above ground infrastructure. 1. The written submissions referred to in (1) are: 1. To be filed and served no later than 7 days from the date of this order; and 2. To comprise submissions of no more than 10 single sided pages (including any annexures) prepared in no less than 12pt font and in accordance with the requirements of r 4.3 of the Uniform Civil Procedure Rules 2005. 1. The parties are not to request that the Senior Commissioner makes the determination pursuant to s 34(3) of any agreement until after the expiration of 7 days from the date of these orders. 2. The exhibits are returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 July 2021